Threats to the Rule of Law: A Real and Present Danger Sept 12, 2015 Ian Greene

Harper’s War With the Law Sandy Garossino is a lawyer and former Crown Attorney; now working in business in Canada and internationally Argument: Harper knows very little about the rule of law, or is holds it in contempt because it constrains his authority. This attitude was the genesis of the Mike Duffy scandal. My supplemental argument: Harper is not alone; public servants need to understand the rule of law in order to try to keep their peers and superiors (public servants or elected) from violating it.

Duffy Issues Section 23 of the Constitution Act, 1867 states very clearly, with regard to the qualifications of a Senator, that “He shall be resident in the Province for which he is appointed.” They must also be at least 30, own property worth $4,000, and specific requirements for Quebec. Harper appointed Duffy, Wallin and several others knowing they owned property in the province for which appointed, but were not resident. 2013: PM’s lawyer, Benjamin Perrin, said owning property in province for which appointed not enough for “residency.” Harper, a non-lawyer, disagreed. Catch 22: If Duffy a resident of PEI, he can claim living expenses for his home in Ottawa. If he’s not a PEI resident, his appointment was unconstitutional. Perrin resigned a week after Wright paid Duffy’s Ottawa expenses claims.

Nadon Issue Harper unhappy that even with 7 SCC appointees, he lost important constitutional cases: eg. Insite & Omar Khadr before Nadon scandal, and Senate reform, tough on crime, and assisted suicide after. He wanted appointees who would do his will. (Didn’t understand judicial independence or the rule of law.) In the Federal Court, Nadon was the only judge who sided with the government re Khadr. Supreme Court Act requires 3 judges from Quebec: barristers, or members of Quebec courts. Why? In Quebec civil appeals, 3/5 judges must be from Quebec. Provision for “temporary” judges to make up the three, but Federal Court judges may not sit as temporary judges. Why? Nadon had been a barrister in Quebec 20+ years earlier. When McLachlin heard that a federal court judge was being considered for a Quebec permanent position, she wanted to ensure that PMO knew there may be a constitutional issue. PMO asked for opinions on eligibility, but asked the wrong question. (Peter Russell was asked, but gave PMO an answer they didn’t like, so they ignored his advice.)

Nadon Ineligible Marco Galati challenged Nadon’s appointment in SCC. Court heard the challenge and agreed: purpose of Supreme Court Act is to ensure that Quebec judges on SCC are experts in Quebec civil law. Harper then attacked McLachlin for violating judicial independence. Harper universally condemned by Canadian legal community and international legal community: it was he who violated judicial independence. The more open and transparent system for SCC appointments begun under Paul Martin, and continued for a time by Harper (Rothstein) completely abandoned. (previously, a nominating committee composed of eminent jurists, a screening committee composed of MPs, and a public questioning of appointee before House of Commons Justice committee.

Senate Reference Conservatives wanted Senate “elections” as in Alberta. Five amending formulas for Canadian constitution. Harper claimed that legislation to enable provincial Senate elections could be accomplished through the “Parliament-internal” amending formula. Why didn’t the gov’t send a reference question to the SCC in 2006? Finally, in 2013, cabinet sent a reference question on senate reform to SCC, and SCC answered in 2014.

Supreme Court’s analysis of Senate The Supreme Court’s reasoning was that an appointed Senate, in which Senators are appointed until retirement, is part of the “constitutional architecture” of Canada. In the negotiations leading up to Confederation in 1867, the nature of the upper house in the new Parliament was of paramount importance, and the union would never have come about without agreement about the nature of the Senate. The Senate was to be appointed rather than elected so that it could act as a non-partisan chamber of sober second thought, and Senators were appointed for life (later until retirement) to encourage independent legislative review based on years of experience.

Result of Senate Reference Creating an elected Senate requires the agreement of 7/10 provinces with at least 50% of the population, plus Parliament. Abolition of Senate requires unanimous agreement of 10 provinces and Parliament. Interference with Senate’s independence by PMO could be considered unconstitutional, and subject to judicial review. No comment, of course, on proposal for a Senate appointments system based on merit. I think that a constitutional amendment is not required. But a reference to SCC should take place before the system is changed.

The Rule of Law Result of society’s quest for fairness over thousands of years Since “glorious revolution” in England of 1688: – Laws are made by elected legislatures (free and fair elections) – Disputes about meaning of laws are impartially by judges who possess independence from the legislature and executive. – Laws to be applied impartially by the public service. Canada: what Parliament and provincial legislatures can do is limited by the division of powers, and the Charter of Rights & Freedoms.

Why you need to understand the Rule of Law Your peers and superiors are liable to judicial review, or even prosecution, if they stray from the law. Eg: Alberta Assistant Deputy Minister who advised Assured Income for the Severely Handicapped administrators (six across province) to vary their decisions according to amount left in budget, rather than Order-in-council definition of “severe handicap.” Alberta government successfully sued for millions.